Finalizing a divorce can be a complicated process. As with any legal proceeding, multiple forms and documents are required under California law, a specific county’s local rules of court, or both, to ensure that the divorce is legally valid and completed. This article describes some of the documents and processes that may be involved in a divorce proceeding.
What Is a Divorce Petition?
The petition initiates and opens a divorce matter with the court upon filing.
Along with others, the petition includes statistical information about your marriage, such as the date and length of your marriage and the names of the children from the marriage, if any. It also states the legal reason for requesting the divorce, such as irreconcilable differences, as well as requests for how you would like the assets and debts divided, child and/or spousal support, custody and visitation, and payment of attorney’s fees and costs.
Properly initiating a divorce proceeding is not completed by simply filing the petition. You must also serve the petition on your spouse. Additionally, you must file and serve the summons and any accompanying forms that are specifically required by your county’s court system. Service gives your spouse legal notice of the divorce proceeding. However, under California law, you cannot serve your spouse with these initial forms. Instead, you must have another legal adult, such as a professional process server or, if necessary under the circumstances, your county’s sheriff.
Then, your spouse has 30 days from the date of service to file and serve a response and request for a dissolution of marriage (“response”) to your petition. served. The response likewise includes statistical information about the marriage. It also includes your spouse’s response to the requests raised in your petition, or their own requests related to the divorce proceeding. Accordingly, your spouse may agree or disagree with your requests or, if applicable, the statistical information stated in your petition
What Is a Divorce Judgment?
A judgment is an order that finalizes your divorce and declares both individuals legally single. It resolves the requests raised in the petition and/or response and makes them court orders. Obtaining a judgment is the end goal after you file and serve your petition on your spouse. The following three scenarios generally lead to the judgment phase of a divorce proceeding:
- Your spouse agrees to all of the request stated in the petition, so you may proceed with obtaining a judgment from the court.
- Your spouse does not agree to some or all of the requests stated in the petition, but you may seek to informally resolve any issues without going to court. For example, you and your spouse can participate in mediation or collaborative divorce so that you reach a complete settlement. If you are successful, you may likewise proceed with obtaining a judgment,
- ,Your spouse does not agree to some or all of the requests stated in the petition, does not agree to participate in mediation or collaborative divorce, or does not wish to negotiate at all, so you will need a court order for any disputed issue. Once the judge makes an order on a particular issue, that order may be incorporated into the judgment.
In short, regardless of which scenario you experience, all three lead to the same final result: a judgment that finalizes your divorce.
What Is a Divorce Appeal?
An appeal is the process by which a higher court, such as the court of appeal, reviews the legal decision reached in an order made by a lower court, such as the superior court at which you filed your petition.
If you believe that the superior court judge misapplied the law or made another legal error in its order—and assuming all specific procedural rules and deadlines are met—you may be able to appeal that order. You cannot seek an appeal because you do not like or agree with the original order, and you must be able to specifically identify the legal error(s) on which that original order is based upon.
If the court of appeal grants the request for appeal, it will review only those specific legal issues raised in the appeal. The court of appeal will not issue a new order for the one that is being appealed; it will instead send your case back to the original court, directing it to review and re-issue a new order based on the legal conclusion that was decided on appeal. If the court of appeal does not find a legal error, the original order will stand.
What Is a Writ?
The appeals process moves slowly. The average civil appeal in California is resolved in approximately 17 months; some cases may take several years. Some situations require a more immediate form of relief. For example, in the time it takes to appeal a custody order denying one parent visitation, the parent-child bond may have been irreparably damaged, even if the custody order is ultimately overturned. Another example is the denial of a request for need-based attorney fees. If a party cannot afford to hire their own attorney, and the trial court denies their request for fees, that party will have to represent themselves in the divorce proceeding, where their lack of counsel may have serious consequences for their case.
A writ is another type of appellate relief that allows a party in certain situations to “jump the line” without going through a lengthy appeals process. It is a form of extraordinary relief that is seldom granted; an estimated 90% of writ petitions are denied, often with no more than a one-sentence order. A party requesting writ relief must show that they have no adequate remedy at law, and that they or another party would suffer irreparable harm as a result of delay. Examples of areas in family law where a writ may be an appropriate form of relief include temporary child custody orders, orders denying need-based attorney fees, or orders denying or granting requests to change venues or disqualify a judge.
Experienced Legal Counsel for All Stages of Divorce
The many forms and legal terms that may be involved in divorcing your spouse can be confusing. However, it is critical to understand them to achieve an efficient and effective split. No matter what stage of the process you are in, you can work with the experienced Silicon Valley family law specialists at Madigan & Lewis LLP.Our skilled divorce attorneys are prepared to guide you through the process from beginning to end. We take care to ensure you understand your options so we can help you achieve the best possible outcome from your divorce. Learn more about how we can assist you by scheduling your consultation today.
